Supreme Court majority holds that specialty license plate designs constitute government speech. In a dissent, Justice Samuel Alito says that Texas' rejection of a Confederate flag specialty plate 'takes a painful bite out of the First Amendment.'

Eric Gay/AP

The Confederate flag is seen on a monument to Hood's Texas Brigade at the Texas State Capitol on June 18, 2015, in Austin, Texas. The Supreme Court on Thursday upheld Texas's refusal to issue a license plate bearing the Confederate battle flag, rejecting a free-speech challenge.

The State of Texas is free to decide which specialty license plates to issue and which to reject when it deems the proposed message offensive or too controversial, the US Supreme Court ruled on Thursday in an important First Amendment case.

In a 5-to-4 decision, the high court rejected a legal challenge by the Texas Division of the Sons of Confederate Veterans that sought to force Texas to issue a specialty license plate featuring the Confederate battle flag.

A Texas board rejected the proposed license plate on grounds that many Texans consider the flag a symbol of oppression and racism.

The Sons of Confederate Veterans (SCV) said it views the Confederate flag as a symbol of sacrifice, independence, and Southern heritage. The group argued that it has a free speech right under the First Amendment to express its view on a specialty license plate, and that the state should not be permitted to censor that message because some people find it offensive.

Only a few proposed specialty plates – including the SCV plates – have ever been rejected.

The question in the case was whether specialty license plates represent the private speech of Texas drivers, and are thus subject to First Amendment protection, or are instead government speech, which isn’t subject to that same level of free speech protection.

He said states have traditionally used license plates to convey slogans and other government messages. In addition, the plates serve a government function as essentially a state-issued ID for vehicles.

Justice Breyer added that Texas effectively controlled the content of the plates through a board that exercises final approval over proposed messages.

If Texas didn’t exert such control, Breyer said, the state might be forced to issue plates with messages the state rejects. For example, the state’s “Fight Terrorism” specialty plate, might prompt someone to request a specialty plate promoting Al Qaeda, he said.

“The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider,” Breyer said.

“Messages that are proposed by private parties and placed on Texas specialty plates are private speech, not government speech,” he said. “Texas cannot forbid private speech based on its viewpoint. That is what it did here.”

Alito offered a simple test to differentiate between private and government speech. He suggested sitting beside a Texas highway and watching the various specialty plates whiz past.

“You would likely observe plates that honor numerous colleges and universities. You might see plates bearing the name of a high school, a fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver,” he said.

“As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?”

He added: “If a car with a plate that says ‘Rather Be Golfing’ passed by at 8:30 a.m. on a Monday morning, would you think: ‘This is the official policy of the state – better to golf than work?’ ” he wrote.

Instead, he said, the Texas specialty plate program is the equivalent of Texas selling space for private messages on little mobile billboards on each plate. That program creates a limited public forum in which state property is used by private speakers to deliver their own message in accord with rules set by the state, Alito said.

The key point, according to Alito, is that under the First Amendment the states’ rules cannot discriminate on the basis of viewpoint.

In allowing Texas to do so, he said, the high court has set a precedent for less free speech and more government censorship.

“This capacious understanding of government speech takes a large and painful bite out of the First Amendment,” Alito wrote. “Specialty plates may seem innocuous. They make motorists happy, and they put money in a state’s coffers. But the precedent this case sets is dangerous.”

Alito questioned what might happen if a state college or university sought to ban certain private messages from a community bulletin board or list serve because they disturbed some students or faculty members.

“Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment?” he asked. “I hope not, but the future uses of today’s precedent remain to be seen.”

In his majority opinion, Breyer emphasized that the government may not compel people to express a view with which they disagree. “But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position,” he said. “In doing so, it represents its citizens and it carries out its duties on their behalf.”

He added: “Just as Texas cannot require SCV to convey the state’s ideological message, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates.”